Whether the Revenue was justified under section 15(1)(a) (records do not exist) and section 29(1) of the FOI Act (deliberative process) in refusing access to records concerning tax collection on properties rented through Airbnb
30/04/2018
Background
On 18 April 2017, the applicant made an FOI request to the Revenue for:
Correspondence between the Department of Finance and [the Revenue] in relation to tax collection on properties rented through the Airbnb website or app and the volume of tax evasion or avoidance in relation to same.
Statistics for the past 12 months on the percentage/number of homeowners who use Airbnb to rent a room or property who are believed or estimated to be evading or avoiding the payment of tax on that income.
Statistics for the past 12 months on the percentage/number of homeowners who use Airbnb to rent a room or property and are in full compliance with tax requirements.
The volume (in €) of tax paid by homeowners who use Airbnb to rent a room or property.
The estimated volume (in €) of unpaid tax by homeowners who use Airbnb to rent a room or property.
The Revenue issued a two part decision on 16 May 2017. The Personal Taxes Policy and Legislation Division refused access to 14 records relating to part 1 of the request under section 29 of the FOI Act (deliberative process). The Planning Division refused access to records relevant to rest of the request under section 15(1)(a), on the basis that they do not exist.
The applicant sought an internal review on 26 May 2017, which again was addressed in two parts. On 28 June 2017, the Personal Taxes Policy and Legislation Division affirmed its refusal of records relevant to part 1 under section 29, and also relied on section 35 (confidential information). On 23 June 2017, the Planning Division affirmed the refusal of records relevant to the rest of the request under section 15(1)(a).
On 12 July 2017, the applicant made an application to this Office for a review of the Revenue's decision. In the course of the review, the Revenue said it was willing to grant access to a record relevant to part 1 (i.e. record 14). It said that record 14 is a pre-budget submission that is publically available on the Oireachtas website.
I am now concluding the review by way of binding decision. In carrying out my review, I have had regard to the details of the above exchanges and correspondence between this Office, the Revenue, and the applicant, to the content of the records, and to the provisions of the FOI Act.
Scope of the Review
This review is confined to whether or not the Revenue has justified its refusal to fully grant the applicant's request. I see no need to deal with record 14 in my decision.
Analysis and Findings
Part 1 - Section 29 (Deliberative Process)
The Commissioner's Approach to Section 29
Section 29 is a discretionary exemption, which provides that an FOI request may be refused if (a) it contains matter relating to the deliberative processes of an FOI body (including opinions, advice, recommendations, and the results of consultations), and (b) the granting of the request would, in the opinion of the head of the FOI body, be contrary to the public interest.
The requirements of sections 29(1)(a) and (b) are independent, and the fact that the first is met carries no presumption that the second is also met. It is therefore important for FOI bodies to show to the satisfaction of the Commissioner that both requirements have been met.
A deliberative process involves the consideration of various matters with a view to making a decision on a particular matter. It would, for example, include some weighing up or evaluation of competing options or the consideration of proposals or courses of action.
The public interest test in section 29(1)(b) differs from the public interest test found in other exemptions under the FOI Act. Other exemptions require the public body to be of the opinion that the public interest would be better served by release. To avail of section 29, the public body must be of the opinion that releasing the records would be against the public interest. In my view, this exemption tends more strongly towards release of records, and public bodies have a higher hurdle to overcome in demonstrating that it applies.
Therefore, public bodies must show, to this Office's satisfaction, that release of the material at issue would be contrary to the public interest. Generally speaking, this requires a body to identify a specific harm to the public interest flowing from release. While there is nothing in the exemption itself which requires the deliberative process to be ongoing, the question of whether the process is ongoing or at an end may be relevant. Furthermore, section 29 specifically requires consideration of whether the requester would, by the release of the record(s), become aware of a significant decision that the an FOI body proposes to make.
Analysis
Section 22(12)(b) of the FOI Act provides that a decision to refuse to grant an FOI request shall be presumed not to have been justified unless the head of the relevant public body shows to my satisfaction that its decision was justified.
Although I am obliged to give reasons for my decision, section 25(3) requires all reasonable precautions to be taken in the course of a review to prevent disclosure of information contained in an exempt record. I consider that this is a case in which describing the harms and arguments set out by the Revenue would essentially disclose the subject matter of the records. It follows that my description and analysis of the Revenue's arguments, any references to the content of the records, and the reasons I can give for my decision in the circumstances of this case, are extremely limited.
Section 29(1)(a)
The Revenue says that the 13 withheld records relate to an ongoing deliberative process. It has given details of the process concerned. Again, section 25(3) prevents me from describing the records other than to say that they involve taxation policy issues.
The applicant says that it is hard for him to make arguments given that the Revenue did not provide him with a schedule of records. He disputes that each record can be part of the deliberative process, and says that a significant amount may be procedural. He feels that correspondence is unlikely to set out policy decisions.
In fact, the Revenue did provide a schedule with its original decision to the applicant. While the date and number of pages of each record is listed, the description of the records is, of necessity, very general in order not to disclose exempt material.
In order for section 29(1)(a) to apply, the records must only "relate" to a deliberative process. I accept that, having regard to their contents and the Revenue's arguments, the records meet this test in that they consider various matters with a view to making a decision on that matter. I find that the first requirement of section 29(1), as set out at section 29(1)(a) of the FOI Act, has been met in this case.
Section 29(1)(b)
The Revenue argues that access to the records would be contrary to the public interest, and would disclose issues that are currently under consideration without a full analysis having been completed. It has given details to this Office of the harms that it considers would be caused to the public interest if access was granted to the records.
The applicant says that, in the context of an ongoing homelessness crisis and increasing rental costs and home prices, it is in the public interest to know the tax status of properties rented through short term lettings websites such as Airbnb. He argues that it is in the public interest to know how the Revenue and Department of Finance are dealing with what he says is a corporate body that holds, to some extent, responsibility for the significant reduction in Ireland's rental property stock.
While the applicant also says that correspondence between Airbnb and the Revenue should be released, he did not request such records. Part 1 of his request was confined to correspondence between the Department of Finance and the Revenue.
As already noted, the public interest test in section 29(1)(b) weighs more strongly in favour of release of records than do the public interest tests in other FOI Act exemptions. I accept that access to the records would serve the public interest in ensuring openness and accountability for the development and/or application of policies and processes for the collection of taxes from a specific cohort of taxpayers.
The public interest against release is recognised in the various exemptions in the FOI Act, including that in section 29, and in the Long Title to the Act itself. There is a public interest in ensuring that the deliberations can conclude without undue interference. As already explained, the Revenue has explained how it envisages that the deliberations can be harmed if access to the records were to be granted at this point in time.
Notwithstanding the weight of the public interest in favour of release, I consider the Revenue to have justified its view that release of the records at this point in time would be contrary to the public interest. I find that the second requirement of section 29(1), as set out at section 29(1)(b) of the FOI Act, has also been met in this case.
In finding, thus, that the Revenue has justified its refusal of the records under section 29(1) of the FOI Act, I should also make it clear that I would not accept that those records are permanently exempt under that provision. I accept that it is possible, depending on the stage of the deliberative process reached at the time of a future FOI request, that the public interest in withholding the records might be weakened. However, it is not appropriate for me to speculate on when that might be.
Section 29(2) - The Exceptions to Section 29(1)
Section 29(2) provides that the exemption does not apply if and in so far as the record contains any or all of the following: (a) matter such as rules, procedures, guidelines, interpretations and precedents used, or intended to be used, by an FOI body for the purpose of making decisions, determinations or recommendations; (b) factual information; (c) the reasons for the making of a decision by an FOI body; (d) a report of an investigation or analysis of the performance, efficiency or effectiveness of an FOI body in relation to the functions generally or a particular function of the body; (e) a report, study or analysis of a scientific or technical expert relating to the subject of his or her expertise or a report containing opinions or advice of such an expert and not being a report used or commissioned for the purposes of a decision of an FOI body made pursuant to any enactment or scheme.
I do not consider the exceptions to apply in this case. In relation to section 29(2)(b) in particular, and having regard to this Office's approach to the release of non-exempt material from an otherwise exempt record as provided for by section 18 of the Act, it seems to me that it would not be practicable to attempt to extract any factual information from the records while at the same time ensuring that the redacted copies are not misleading under section 18 of the Act.
Parts 2 to 5 - Section 15(1)(a) (Records Do Not Exist)
The Revenue has refused parts 2 to 5 of the request under section 15(1)(a). Section 15(1)(a) of the FOI Act provides that a request for access to a record may be refused where the record does not exist or where it cannot be found after all reasonable steps to ascertain its whereabouts have been taken.
This Office's Approach to Section 15(1)(a) and the Creation of Records
A review of a public body's refusal of records under section 15(1)(a) assesses whether or not it is justified in claiming that it has taken all reasonable steps to locate all records of relevance to a request or that the requested records do not exist.
The FOI Act does not require FOI bodies to create records if none exist, apart from a specific requirement, in certain circumstances, to extract records or existing information held on electronic devices.
Under section 17(4), where a request relates to data contained in more than one record held on an electronic device by the FOI body concerned, the body must take reasonable steps to search for and extract the records to which the request relates. The reasonable steps are those that involve the use of any facility for electronic search or extraction that existed on the date of the request and was ordinarily used by the FOI body. Where these reasonable steps result in the creation of a new record, that record is, for the purposes of considering whether or not such a new record should be disclosed in response to the request, deemed to have been created on the date of receipt of the request.
However, there is no corresponding requirement on an FOI body to extract relevant information from hard copy files (assuming that the files contain the information in the first place, of course) in order to compile the information sought. Such an exercise would involve the creation of a new record, which is not required under the Act.
The Revenue's Arguments
The Revenue says that intermediaries who receive payments from third parties on behalf of certain other persons (including those dealing with payments from the provision of on-line accommodation) must make annual returns to the Revenue where those payments are made in connection with a premises. As the applicant knows, I understand that these returns state a gross income figure, rather than the net taxable profit (i.e. the amount on which tax is due having taken account of the taxpayer's other income and deductions).
Tax returns (such as Forms 11 and 12) do not require tax payers to state how much of their income, profits or gains were generated from traditional business activities as opposed to online activities; neither do the returns request details of which online service providers were used by a person to generate taxable income, profits or gains. On a general level, the Revenue says that while voluntary tax compliance levels in the State are high, some tax payers either under-report or exclude income, profits or gains, or overstate their expenses. Information on the numbers of compliant or non-compliant taxpayers derives from subsets of the number of cases in respect of which the Revenue decides to open a compliance intervention. The Revenue's decision also says that some taxpayers pay relevant liabilities through the PAYE system by reduction of tax credits.
The applicant did not comment on the Revenue's reasons for relying on section 15(1)(a).
In summary, it appears to me that the information provided to the Revenue by intermediaries does not (and indeed could not reasonably be expected to) contain details of the taxpayer's ultimate tax liability. It also seems to me that tax returns do not enable identification of those renting rooms through Airbnb, as opposed to those renting property in traditional ways or generating income from other business activities. I also note that in some cases tax is paid by a reduction of tax credits, rather than by way of payment to the Revenue.
In short, it appears to me from the Revenue's arguments that it would only be able to generate statistical and absolute information regarding the tax affairs of Airbnb hosts if it were to open compliance interventions on all taxpayers. The Revenue is not required to take such a step in order to grant an FOI request.
I accept the Revenue's position that hard copy (paper) records containing the requested information do not exist. I also accept that in such circumstances, the Revenue cannot collate the requested statistics from its systems for the purposes of complying with section 17(4).
I find that section 15(1)(a) applies to parts 2 to 5 of the request.
Decision
Having carried out a review under section 22(2) of the FOI Act, I hereby affirm the Revenue's refusal of the request. I affirm its refusal of records relating to part 1 under section 29, and the refusal of records relating to the rest of the request under section 15(1)(a).
Right of Appeal
Section 24 of the FOI Act sets out detailed provisions for an appeal to the High Court by a party to a review, or any other person affected by the decision. In summary, such an appeal, normally on a point of law, must be initiated not later than four weeks after notice of the decision was given to the person bringing the appeal.
Elizabeth Dolan
Senior Investigator
